FAZAL HUSAIN Vs. MUHAMMAD KAZIM

JUDGEMENT

(1.) These are two connected appeals from a decrea passed by the learned Subordinate Judge of Ghazipur upholding the claim of the plaintiff-respondent, Muhammad Kazim, to a Hi out of 216 sihams representing the entire property, originally belonging to one Syed Ali Hasan, whose relationship with the plaintiff and other defendants will appear from the following pedigree:

(2.) The defendants to the suit were eight in number, out of-whom five are transferees claiming under deeds executed by defendant 1, Syed Amir Hasan, who died during the pendency of the appeals to this Court and is now represented by his heirs. The plaintiff claims title through his mother, Habiba Bibi, who is said to have died about 21 or 22 years before the institution of the suit. It is not in dispute that the property in suit, except possibly certain houses and groves, originally belonged to the common ancestor, Syed Ali Husain, who died long ago leaving his widow, Sughra Bibi, a son, Ahmad Husain, and a daughter, Khatun Bibi, each of whom inherited a portion of his property under Mohammadan law. Ahmad Husain died in the lifetime of his mother, leaving a son, Syed Amir Hasan, defendant 1, and a daughter, Habiba Bibi, the mother of the plaintiff. According to Mohammadan law, his interest devolved upon his mother, son and daughter. On Mt. Habiba Bibi's death, the plaintiff inherited a share in her property. The plaintiff's interest in the property of Syed Ali Huaain has been found to be I7i shares, if the entire property of Ali Husain be considered to consist of 216 shares. It is not disputed 8that this is the extent of the plaintiff's share, if his claim is otherwise not defeated.

(3.) The defence of Syed Amir Hasan, defendant 1, was that his possession had been throughout adverse to the plaintiff's mother and the plaintiff himself, both of whom had lost their rights by lapse of time. Defendant 6, Shaikh Fazal Husain,. claimed part of the property in dispute under a mortgage dead and a sale-deed both of 23 December 1920, executed by Amir Husan, defendant 1. In addition to. his vendor's plea of adverse possession, he. defends his own position on the allegation that he purchased the property from Amir Hasan who was the ostensible owner thereof, with the consent of the plaintiff and his mother, and that he (defendant 6) obtained transfers for consideration and in good faith after taking reasonable care to ascertain that his transferor had authority to make the transfers. Syed Amir Hasan pleaded, as a subsidiary case, that the house and groves in dispute were his personal property, he having constructed the houses and planted the groves. The learned Subordinate Judge found against the defendants on all questions raised by ; them and decreed the plaintiff's suit, except as regards a portion of a certain house, which he found to have been built by Amir Hasan himself. First Appeal No. 72 of 1929 was filed by Fazal Husain, defendant 6, and F.A. No. 97 of 1929 was filed, by Amir Hasan.